Mahesh Chandra, J.
1. This is an appeal by Chhotey Lal who has been convicted under Section 302 I P C and sentenced to imprisonment for life
2. Briefly stated the prosecution case was this. Chotey Lal appellant, who is an employee of the Central Railway, lived with his wife Smt. Sheo Kanya in a house in Mohalla Tha-kuryana Jhansi On 16-9 1963 when Chotey Lal returned to his house after finishing his duty at 12 O'clock in the night, his wife opened the door for him He entered the house and bolted the door behind him. As he proceeded inside somebody who had hidden him self in the outer court-yard, suddenly came out. unbolted the main door and ran away The appellant suspected his wife's chastity and consequently stabbed her with the knife (Ex 4) He was seen killing her by Chunbad (P W 1). After murdering his wife the appellant went to the Police Outpost Garhia Phatak six furlongs away from his house, and lodged the first information report (Ex Ka-7) at 4.45 a.m. On the way he broke the blood stained knife into two and threw it into a bush. The blood stained trousers of the appellant were taken into possession by the police at the Outpost. On the arrival of Sri R. C. Saxena In-charge Police Outpost Garhia Phatak the appellant was interrogated and he stated that he came to the Marshal Yard with the knife and brokeit and threw it there. He took the Sub-Inspector to the bush and recovered the knife from there in the presence of three witnesses, including Baldeo (P W 5) and Mohd. Shaft (P W 6)
3. Dr. N. R. Bhatia (P W 3), who per-formed the post mortem examination on the dead body of Smt. Sheo Kanya, found the following ante-mortem injuries on her person:
(1) Incised wound 3' x 1/4' muscle deep on back of right ear
(2) Incised wound 1' x 1/4' x muscle deep. 1/2' behind the injury No. 1.
(3) Incised wound 1' x 1/2' skin deep 1' below the right ear.
(4) Incised wound 1' x 1/4' skin deep or right side of neck.
(5) Incised wound 1 1/4' x 1/2' cutting the larynx on the front of neck.
(6) Incised wound 1 1/2' x 1/2' cutting the larynx on the front of neck 1/4' below injury No. 5.
(7) Incised wound 1' x 1/2' muscle deep on left side of neck.
(8) Incised wound 1 1/2' x 1/2' muscle deep 2' below the left ear
(9) Incised wound 1' x 1/2' muscle deep on back of the neck
(10) Incised wound 1' x 1/4' muscle deep on back of the neck 2' below the injury No ft
(11) Incised wound 2' x 1/2' muscle deep on back of the chest upper part right side
(12) Incised wound 3' x 1' bone deep on the upper part over the right scapula
(13) Incised wound 3' x 1/2' bone deep 1' below injury No. 12
(14) incised wound 2' x 1' bone deep on the back right side 1' from medial line at the level of the 4th dorsal vertebra
(15) Incised wound 2' x 1/2' bone deep on the right back 1' below injury No 14.
(16) Incised wound 2' x 1/2' bone deep on lower part of left scapula.
(17) Incised wound 2' x 1/2' skin deep on the outer side of right chest.
(18) Incised wound 2' x 1/2' skin deep on the outer side of right chest. 1' below injury No. 17
(19) Incised wound 3' x 1' bone deep on the front of left arm in the middle.
(20) Incised wound 2' x 1/2' bone deep on the front of left arm 1/2' below injury No. 19 In his opinion the cause of death was shock and haemorrhage as a result of multiple in juries
4. The defence was that on return from his duty to his house he had found the door of his house lying open and found his wife lying dead in the court-yard in a pool of blood. He knelt beside the bodv of his dead wife and then rushed to the Police Outpost Garhia Phatak to dictate a report He was asked to mention the person whom he suspected but on his repeated replies that he was unable to express suspicion against any particular person he was told that he would be treated as the murderer The Sub-Inspector then went away returned at about 5 p.m. and told the head-constable that he hadconsulted the Station Officer, then dictated the report (Ex. Ka 7) to the head-constable and forced the appellant to sign it after beating him. The appellant admitted that he was wearing the blood-stained trousers which were taken possession of by the police and that the blood-stains were there because the trousers got stained when he knelt beside the dead body of his wife. He denied breaking any knife or having made any statement about it to the police and also denied recovery of the two pieces at his instance.
5. Before the learned Sessions Judge the prosecution relied on five items and circumstances brought out from the evidence:
(1) The report lodged by the appellant at police out-post Garhia Phatak.
(2) The recovery of blood-stained trousers from the person of the accused by the police.
(3) The recovery of the knife (Ex 4) at the appellant's instance.
(4) Presence of Injuries on the appellant's person, and
(5) The statement of the eve-witness Chunbad (P W 1)
6. The learned Sessions Judge did not rely on the statement of Chunbad (P W 1) holding that it was not safe to place reliance on his testimony Reiving on the circumstantial evidence, however, coupled with the other Items mentioned above he convicted the appellant.
7. We agree with the learned Sessions Judge that no reliance can be placed on the statement of Chunbad (P W 1), examined by the prosecution Chunbad, the neighbour of the appellant, stated that he had come out of his house to urinate at about 1 a.m., heard screams of the deceased and on going to the appellant's house found him stabbing her with a knife. According to the witness, he saw all this in the light of the lantern burning in that room The witness says that he raised an alarm on seeing this. It is strange that although there are certain number of houses in the neighbourhood nobody came out of their houses. If he had witnessed the incident and raised the alarm, as stated by him, some one of the neighbouring houses must have come out immediately. This shows that Chunbad did not raise any alarm and did not in fact, see any incident.
Chunbad himself stated that when nobody responded he returned and bolted himself in side the house. His explanation for not rousing any neighbour was that he was afraid that the appellant would stab him also, but after he had come inside his house he could have raised an alarm from there Chunbad further stated that he did not inform anybody in the locality till the arrival of the police He says that the police itself had arrived there before sunrise and that consequently he had no opportunity to speak to mohalla people According to Sri R. C. Saxena (P W 8) the police arrived at about 9 a.m. There was consequently ample time for the witness to inform the neighbours if he had witnessed the tragedy of a husbandkilling his wife. This unnatural conduct OD his part also indicates that he did not witness the incident at all. Evidently, no reliance can be placed on the statement of such a witness.
8. We are then left with the circumstantial evidence alone and the report (Ex. Ka-7). The learned Sessions Judge excluded part of the report from evidence and treated only the following portion as admissible:
'Mere naam Chotey Lal vald MahabirBharbhuja sakin Mohalia Thakuryana, PullaNo. 9 me rahtaa hun. Aaj raat me railwayworkshop se duty khatam karke karib 12.30baje raat apne ghar pahuncha. Aurat ko avaldekar kiwar khulwaya Kiwar khulne kesaath andar chali gal aur maine kiwar sankarlagakar band kar diva aur ghar ke andar chalagaya Usi samay ek aadmi mere ghar ka kiwarkholkar bhaga Maine apni aurat se punchhayeh kon aadmi tha. Mere itna kahna tha kiwah gali bakne lagi. Lalten jal rahi thi...churi maine raste me phenk di. Ittla ko ayahun.'
This he did relying on a decision of this Court in Allah Dia v. State, 1959 All LJ 340 and also on two other decisions Bodhan v. Emperor : AIR1948All223 and Emperor v. Bhagi, 1641-42 Cri LJ 539=(AIR 1941 Oudh 359) For the admissiblllty of a first information report of a confessional nature after exclusion of the confessional part he also relied upon Kartar Singh v. State, 1952 Cri LJ 1090= (AIR 1952 Pep 98) and State v. Balchand and State of Rajasthan v. Shiv Singh. .
9. In Nisar Ali v. State of U. P., AIR 1967 SC 366 however Kapur, J. speaking for the Supreme Court, observed:
'A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157, Evidence Act, or to contradict it under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses'
This was a clear pronouncement of the Supreme Court against the admisslbillty of the first information report against the maker when he himself is an accused. In Allah Dia's case 1959 All LJ 340 (supra) it was sought by this Court to distinguish this decision on the ground that the question before the Supreme Court was where an accused's first information report could be utilised against his co-accused and that the Supreme Court had no occasion to consider whether the report made by the accused himself could be considered against him as an admission. In our view such a distinction could not be drawn Moreover, Section 25 of the Indian Evidence Act clearly provides that no confession made to a police officer shall he proved as against a person accused of any offence. The only exception to this exclusion is provided by Section 27, which runs as follows:
'Provided that when any fart is deposed to as discovered in consequence of information received from a person accused of anyoffence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'
Only that part of the first information report could, therefore, be admissible in evidence which was covered by Section 27 and related distinctly to discovery in consequence of the information received from the accused. This part also would be admissible only if the accused could at that time be treated to be in the appellant's (sic) custody.
10. The question of the admissibility of the first information report made by an accused against him again came up for consideration before the Supreme Court in Aghnoo Nagesia v. State of Bihar : 1966CriLJ100 Bachawat, J., speaking for the Court, observed:
'The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when ho was free and not in police custody, as also made before any investigation has begun. The expression 'accused of any offence' covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.' Bachawat, J. then referred to Section 26 which relates to a confession made by the accused while in police custody to any person unless it is made in the immediate presence of a Magistrate. It does not modify the provisions of Section 25 regarding the confession made to a police officer. It is only Section 27 which is in the form of a proviso and as observed by Bachawat, J., 'partially lifts the ban imposed bv Sections 24, 25 and 26.' He went on to observe: 'If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited bv Section 25 The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confes-sional statement No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27'
11. The Supreme Court did not decide the question whether the accused making the first Information report was to be treated as being constructively in police custody at the time he made the report But for the purposes of that case they assumed that the appellant was constructively in police custody and on that basis held only the information contained in the first information report leading to the discovery of the dead body and the tangi as admissible in evidence
12. This decision expressly mentioned the cases reported in and observed:
'We think that the separability test is misleading and the entire confessional statement is hit by Section 25 and save and except as providedby Section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it can be tendered in evidence.'
13. In an earlier case Ram Sajiwan v. State of U P : AIR1964All447 to which one of us (Gangeshwar Prasad, J.) was a party. It was held that:
'If the first information report made by an accused person contains facts relating to motive, preparation and opportunity to commit the crime with which be is charged, and the facts recited therein are self inculpatory in the sense that the narrative describing the relations between the accused and the deceased gives the motive for the crime with which the accused is charged, the whole statement must, in our opinion, he treated as a confession made to a police officer and would be hit by Section 25 of the Evidence Act.'
14. The Court below, therefore, went wrong in relying upon the first information report lodged by the accused at the Police Outpost Garhia Phatak.
15. Even if we accept this sentence 'Chburi mainne raste me phenk di' of the first information report as admissible under Section 27 of the Evidence Act as relating to the alleged discovery of the weapon, it does not help the prosecution, for the alleged discovery of the knife itself has not in our opinion, satisfactorily been proved The witnesses to the alleged discovery are Baldeo (P W 5), Mohd. Shafi (P.W 6). Keshav Prasad, Head Constable (P.W. 7) and R. C. Saxena Sub-Inspector (P W 8) The only two men of the public examined on the point are Baldeo and Mohd Shafi (P. Ws 5 and 6) Both of them are tongawalas and both of them are said to have met the police party by chance near the place of discovery One of them was going to leave his horse for grazing and the other was returning after easing himself It is surprising that if the station officer had been told by the appellant on interrogation that he had broken and thrown the knife near 'Marshal Yard' and was going for its recovery, he did not care to take responsible men of the public as witnesses from near the thana itself or while passing through the inhabited portion of the locality.
It is in evidence, that about 50 or 60 houses were found about the place and the route and some of the residents of those houses could have been easily available long before he met the two tongawalas. As a matter of fact another person Meharhan Singh is said to have been present at the discovery, but he has not been examined One of them Mohd Shafi has not been relied upon by the Court below itself. Mohd. Shafi and Baldeo contradict each other on important points Mohd. Shafi stated that the appellant stated that he would take them to the bush and hand over the knife to them and that he said this in the presence of Baldeo. Baldeo merely says that the appellant led them to some bush about 26 paces ahead of the place where the Sub-Inspector picked up the witness and from inside the bush the appellanttook out the knife (Ex. 4) which had been broken into two Darts.
His silence on the point that the appellant said that he would take them to the bush and hand over the knife to them clearly shows that no such statement was made in his presence. Again Mohd. Shafi stated tha t the broken parts of the knife were wrapped in a cloth and that the bundle was then stitched and sealed, while Baldeo only said that it was sealed only after being properly wrapped and that it was not sewn or stitched in his presence. As pointed out by the Court below Mohd. Shafi had appeared as a witness for the police twice earlier than the present case. Neither of these witnesses can, therefore, be relied upon for the recovery of the alleged knife and its two pieces,
16. Evidently, the police had no information at the time of the alleged recovery about any eye-witness of the incident. Consequently, the recovery would have been a very important piece of evidence, and the Station Officer should have normally taken a more reliable witness with him to the alleged place of recovery.
17. We are then left only with the statements of the two police witnesses Sri R. C. Saxena (P. W 8) and Keshav Prasad (P. W 7). Nobody except these two police witnesses say that the appellant stated that he had come with the knife to the Marshal Yard and threw it there after breaking it. We feel verv doubtful if this knife (Ex. 4) was really the weapon with which the injuries were caused The post-mortem report, as we have already seen, discloses that the deceased had received at least 20 incised wounds and some of these wounds were bone deep. A person giving so many incised wounds evidently intended to kill the woman and would be using the knife in a manner to cause penetrating wounds Not one of the wounds is a stab wound or a punctured wound or a penetrating wound. We find that there is only one sharp-edge to the weapon and that the other is blunt. So if the knife was used for stabbing a causing a penetrating or punctured wound the wound caused would not be an incised wound. Moreover, the knife is so small and light in character that we feel very doubtful if it would ordinarily cause a bone deep wound
18. On behalf of the State reliance was placed on the report of the Serologist that it was stained with human blood We find, however, that the Serologist could not come to a definite conclusion regarding the blood group, because the scrapings of the knife (Ex. 4) were not sufficient for such a test. It cannot, therefore be said that this was the weapon used for the murder of the lady. When the weapon itself becomes doubtful the statements of Keshav Prasad and R. C. Saxena, the Head constable and the Sub-Inspector, also become doubtful Keshav Prasad (P W 7) admits that he did not know the nature of the plant of the bush out of which the knife was taken out by the appellant. It is also significant that thesealed bundle containing the knife was not sent to the Police Station Nawabad with Keshav Prasad when he left for the police station with the appellant and was sent much later. It is consequently not possible to place any reliance on the alleged discovery of the weapon at the instance of the appellant.
19. So far as the presence of injuries on the person of the appellant are concerned, we find that in the General Diary Report only two abrasions were mentioned The allegation of the appellant is that he was beaten by the police. From the very beginning when he made a statement in the Court of the committing Magistrate, he said that he would examine the jail doctor and actually examined the jail doctor as a defence witness It is interesting to note that Dr. Gyan Chand mentioned only abrasions and one contusion at first four injuries as abrasions one of them consisting of multiple abrasion and only two injuries as contusions. Later on he himself admits that he scored out the abrasions in injuries Nos. 3 and 4 and described these wounds as cuts. He also admits that he added 'into skin deep' later on. He further admits that injury No. 6 which had been described as contusion by him formerly be changed contusion into abrasion,
The reason given by him for this change is not at all satisfactory. He savs that he used to examine each injury first inside the room, note in the register and then take the appellant outside for better light and examine the injuries and then make the corrections. He did not do this after noting all the injuries in the register. What he savs he did was to take the accused each time outside the room after making the entry. The next day he tried to improve upon the statement realising the strangeness of the procedure mentioned bv him of examining each injury of the accused first inside the room noting the result of such examination and then taking the accused outside and correcting the first entry and repeating this process in the case of all the six injuries. Consequently he said on the next day that he took out the accused after he had examined him inside and made a note about the injuries to verify the note in the register and then brought out the injured.
When his earlier statement was pointed out to him by the defence counsel he replied at first that that earlier statement was correct. He again said that he did not remember whether he took out the accused every time after he had examined each injury or he had first examined all the injuries inside and made a note about it in the register and then brought out the injured last of all to verify them He was then asked how he had made the statemen yesterday that he had first examined the accused inside the dispensary, made a note about it in the register and then took him to see the injury in better light and then look him back to see the second injury and that he adopted this procedure in respect of all the six injuries. He replied that he had said so because he misunderstood the question.
His attention was again drawn to his statement made on the second day in which he had himself said that he had stated on the previous day that he had repeated the procedure of his examining the accused inside and then outside in respect of each of Ms injuries and to his assertion that this statement was correct, he again said that he made the statement on the second day also because be failed to correctly understand the question. He also admitted that he never followed that kind of procedure before or after this particular case. In the face of such statements of Dr. Gyan Chand, no reliance can be placed on the injury report regarding the nature of the injuries found on the person of the appellant. The contention of the learned counsel for the appellant that the original entries were the correct entries cannot be said to be without substance, and the injuries as disclosed by earlier entries cannot, certainly, be relied on as a circumstance showing that the lady was killed by the appellant. In fact, no question was put to the appellant mentioning his injuries as a circumstance against him and giving him an opportunity to explain them. That being so, no advantage can be taken of them as a circum stance against him
20. The only other circumstance left is the taking possession of the blood-stained trousers from the person of the appellant Evidently, these stains could have been easily caused if the appellant had suddenly found on arrival at his house that his wife was lying dead in a pool of blood. These stains could have been caused by a contact either with her garments or with the blood on the ground or body Fn fact we find that certain holes caused by the places sent to the Chemical Examiner and the Serologist for examining the nature of the blood stains were at the back of the trousers The learned Sessions Judge has relied on it as a circumstance to show that they could not be caused by mere kneeling. But it is still more improbable that the appellant got these blood stains on the back of his trousers while causing incised wounds to the lady.
21. None of the circumstances can, therefore, be said to establish conclusively that itwas the appellant who had caused these injuries to the lady.
22. In Aghnoo Nagesia's case : 1966CriLJ100 (supra) Bachawat. J. himself observed:
'The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a bloodstained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Mills on the morning of August 11, 1963 This evidence is not sufficient to convict the appellant Of the offences under Section 302 of the Indian Penal Code.'
The prosecution case before us stands on not better footing, and the appellant has not been proved guilty beyond reasonable doubt.
23. Giving the appellant the benefit of doubt we allow the appeal, acquit the appellant and set aside his conviction and sentence. The appellant is on bail. He need not surrender to his bail His bail bonds arc discharged.